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CASE NO.: Appeal (crl.)  541 of 1999

PETITIONER: Subhash Shamrao Pachunde                                 

RESPONDENT: State of Maharashtra                                     

DATE OF JUDGMENT: 08/12/2005

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G E M E N T

S.B. SINHA, J.

       The sole appellant herein was prosecuted for commission of offences  with five others under Sections 147, 148, 302 read with Section 149 323,  324 and 149 of the Indian Penal Code.   

       Shamrao, father of the Appellant,  was accused no. 1. The accused  nos. 3 and 4 Ganpati and Tanaji were his brothers whereas accused no. 5  Vijay Dattatray Salunke was his nephew.  The accused no. 6 Vijay  Gangaram Patel was a close family friend.           By reason of its judgment dated 08.11.1989 the learned trial Judge  while convicting the Appellant under Section 302 of the IPC and sentencing  him to undergo imprisonment for life and pay a fine of Rs.10,000/- or in  default thereof to undergo rigorous imprisonment for three years, and the  accused nos. 1 and 4 under Section 324 of the IPC; acquitted the others of all  charges.  The High Court in the appeals preferred by the appellant therein  affirmed the judgment passed by the learned trial Court but modified the  sentence in respect of accused nos. 1 and 4 to the period already undergone.   

       This appeal was admitted on a limited question, i.e., as regard nature  of offence.   

Before adverting to the contentions raised in the appeal we may notice  the fact of the matter in brief.  The parties were members of a joint family.   Shamrao, accused no. 1 and Prahlad were two brothers.  Whereas accused  Nos. 2 to 5 belong to the branch of Shamrao; the deceased and the  complainant were sons of Prahlad.  A partition took place between the said   brothers in 1984; whereby the northern portion of the open plot by the side  of Haripur Road was allotted to the share of Prahlad and the southern one to  Shamrao.  The northern and southern portion of the plot is divided by a 15 ft.  wide road.  Indisputably the relationships between the parties were strained. All accused except accused no. 6 and the deceased as also the  complainant, sons of Prahlad, are thus closely related.  It is not in dispute  that the complainant and his brothers had been bearing grudge against  Shamrao and his sons inter alia on the ground of inequitable division of the  joint family properties.  Their residential houses of both parties were side by  side .                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

On the day of occurrence an almond tree was being planted in their  side of open plot by the accused. Rajendra, PW8 and his brother

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Nandkumar, deceased were standing in their portion of the open plot  allegedly waiting for their friends for going to participate in a game of  Kabaddi to which   accused nos. 2 and 3 asked them as to what they had  been watching.  They replied that they were standing on their own plot  belonging to their father.  The accused on that rushed towards them with  weapons.  accused no. 1 had an iron-rod, accused no. 2 had a knife, accused  no. 3 was carrying a Pick-axe and accused no. 4 a shovel in their hand.   Seeing accused persons advancing towards them the complainant and the  deceased started retreading southwards, i.e., towards plot of the accused.   They fell in a gutter.  Shamrao and Tanaji allegedly assaulted Rajendra  whereas Nandkumar was assaulted by the appellant and Ganpati, accused  no. 4 with the weapons in their hands.  Rajendra tried to evade the assault on  him by Shamrao with iron-rod as a result whereof  he received injury on his  back.  A spade blow was given by Tanaji on his right foot.  The appellant is  said to have inflicted knife blows on Nandkumar, one on the chest below the  left nipple and the other on the side near the arm-pit;  whereas Ganpati is  said to have inflicted blow on his stomach on the left side above hip bone by  using pick-axe.  The said incident is said to have been witnessed by Raju,  P.W. 9 and Shrirang Jadhav, P.W. 10 who are friends of Rajendra and who  were coming back from a  temple.  The accused thereafter ran away.

Whereas the deceased was shifted to hospital in a Rickshaw, the  complainant went to the Police Station alone in another Rickshaw  It is not  in dispute that Baburao Thorat P.W. 16, the P.S.O. received a phone call  from Dr. Aphale informing that Nandkumar had been admitted to the  hospital by his brother Arvind.   

The first information report lodged by Rajendra was recorded at 8.15  p.m. by Shri Thorat against the accused for commission of offences under  Section 307 read with Section 34 of the I.P.C.  Shri Thorat again  received a  call soon thereafter from Dr. Aphale informing him that Nandkumar had  died in the meanwhile.   

The learned Sessions Judge did not believe a part of the prosecution  story, viz., that the complainant and the deceased fell into the gutter because  of the mischievous acts of tripping of their legs by the appellant and  Ganpati.  He was also of the opinion that the accused nos. 5 and 6 had no  role to play in the incident.  He furthermore held that the incident having  taken place at the spur of moment,  no case of formation of common object  or common intention had been made out and consequently held that they  were guilty of commission of offences having regard to their individual acts.   

Mr. V.A. Mohta, learned senior counsel appearing for the appellant  despite limited leave having been granted sought to argue the appeal on  merit which was not permitted.  The learned counsel took us through the  judgments of both the courts below as also the evidence of P.W. 8 Rajendra,  P.W. 9 Raju and P.W. 10 Shrirrang.  It was contended that the findings of  the Courts below holding the appellant guilty of commission of an offence  under Section 302 I.P.C. must be considered by us in the context that the  prosecution story was partly disbelieved.  It was urged that admittedly the  incident occurred on the plot owned by his father and in that view of the  matter it cannot be said to be a case where the appellant had any intention or   motive to cause the death of the deceased and the accused nos. 1 and 4 to  cause injuries on P.W. 8.  Learned Counsel further urged that Exhibit 31, the  knife, having not been found to be blood-stained, the purported recovery  thereof was irrelevant.  It was further submitted that as both the Courts  below  have  concurrently  found  that the incident occurred at the spur of  the moment without there being premeditation and meeting of mind, the  appellant at best can be said to have committed an offence under Part II of  Sec. 304 of the Indian Penal Code.  Our attention was also drawn to the fact  that weapons held by all the accused were available at the spot having been  carried by them for planting the almond tree.  Mr. Mohta further submitted  that in a case of this nature the fourth Exception appended to Section 300 of  the I.P.C. would be attracted.  Reliance in this behalf has been placed in the  case of Khanjan Pal v. State of U.P. (1990) 4 SCC 53 and Bhojappa

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Hanumanthappa Choudannavar and ors. vs. State of Karnataka  (2004) 2  SCC(Cri.) 1783.   

Mr. Adsure, learned counsel appearing on behalf of the State, on the  other hand, submitted that the prosecution case has not only been supported  by the complainant but also by the independent eyewitnesses and having  regard to the fact that the appellant herein has inflicted two knife injuries on  the vital part of the body of the deceased, it is not a case where fourth  Exception to Section 300 of the I.P.C. shall apply.

Having regard to the fact that limited leave was granted in the matter,  namely, on the question of nature of offence, we are only called upon to  determine the question as to whether the offence of causing the death of  Nandkumar at the hands of the Appellant would come within the purview of  the fourth Exception to Section 300 I.P.C. or not.   

The genesis of the occurrence is not in dispute.  The complainant and  the deceased were watching plantation of an almond tree in their premises  by the accused from their own land.  They cannot be said to have caused any  annoyance to them.  It is the appellant and his brother who started exchange  of words by asking as to what they had been seeing.  The answer by the  complainant to the effect that they had been standing on their own land  cannot be said to be a cause for the accused being greatly provoked so as to  cause bodily injuries on the deceased and the complainant. The appellant  and his companions who were armed with weapons assaulted the deceased  and the complainant who were unarmed and must have been taken by  surprise.  Conceivably appellant nos. 1, 3 and 4 were carrying  iron rod,  pick-axe and shovel respectively for the purpose of the plantation of the tree,  but the knife, which was the weapon of offence and was being carried by the  appellant herein, was not required for the said purpose.  Why he was  carrying such a big knife remains unexplained. Accused no. 1 and 4 as well as the appellant advanced towards the  deceased and the complainant as a result whereof they went near the gutter  which was just by the side of the land of the accused.  It may or may not be  that both the deceased and the complainant were tripped into the gutter by  the mischievous acts on the part of the appellant and his brother Ganpati, but    the fact remains that they fell therein.  The learned trial Judge in his  judgment found that while retreading, they fell into the gutter themselves.   The complainant and the deceased were assaulted in the gutter itself.  They  were not carrying any weapon whereas the accused were carrying deadly  weapons.  The effect of assault with deadly weapons on the vital part of the  body of the deceased by the appellant must be considered in the  aforementioned factual background.  The learned trial judge and  consequently the High Court arrived at a finding of fact that the complainant  and the deceased fell into the gutter. The garments put on by the deceased  and the complainant as also the appellant were seized.  The learned trial  Judge held that:

"\005It is also not in dispute that the none of the  accused has sustained any injury and, therefore, the fact  that arrest panchanama is not prepared, does not show  that there is manipulation on the part of the I.O. clothes,  of these accused are attached under panchanama Ex 44.   This panchanama is duly proved by P.W. 6 Chandrakant  Babar.  Panchanama shows that Dhoti and Shirt of  Shamrao were stained with blood.  There were blood  stains on the waist-band and pant of accused No. 2  Subhash, and the Bandi and under-pant of accused No. 3  Ganpati were soiled with silt.  There were blood stains on  the pant of Tanaji.  I have seen these garments at the time  of arguments.  It is found that silt was on the sleeve of  shirt near the cuff, of accused No. 2 Subhash.  These  stains are not mentioned in the panchanama.  There was  silt on all the garments of accused No. 3 Ganapati.  There  were mud stains on the pant, art. No. 22, of accused No.

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4 Tanaji.  It is pertinent to note here that according to  accused No. 3 he had also fallen in the gutter and,  therefore, the fact that all his clothes are covered with  silt, is explained.  These facts establish beyond doubt  credibility of testimony of complainant and eye- witnesses, P.W. 9 Raju Bavadekar and P.W. 10 Shrirang  @ Ranga Jadhav that the complainant and his brother  Nandkumar had fallen in the gutter and they were  assaulted in the gutter."

The deceased and the complainant thus having fallen into the gutter   were not in a position to defend themselves.   

At this juncture, we may notice the ante mortem injuries found on the  body of the deceased Nandkumar.  The doctor who examined the deceased  stated:

"When I examined the patient, I found that the  patient was conscious.  His general condition was poor.   There was severe pallor.  Pulse 110 per  minute.   Respiratory rate 40 per minute.  B.P. 80 to 60 Hg.   Patient gave history of assault at 7 p.m. with knife."

The post mortem was also conducted by him.  The doctor further  opined: "\005At the time of post-mortem, I observed that the  clothes of the deceased were wet with dirty water.  I have  described external injuries in column No. 17.  I have also  observed at the time of post-mortem that there was mark  of blood over chest, abdomen, legs hands mixed with  dirty water stains.  These observations are mentioned in  column No. 14 of post-mortem notes."

He further stated that :

        "\005Contents of the post-mortem notes are correct.   Post mortem notes are marked as Exh. 67.  All these  injuries were ante-mortem.  Injury No. 1 in col. No. 17  corresponds to finding in col. No. 29(e) i.e. injury to left  lung.  Injury No. 4 is surgical.  Injury No. 2 corresponds  to internal injury described in col. No. 21 showing that  large intestine was punctured.  The blood seen in the  peritoneam might on account of injury No.3  described in  column No. 17.  Standing of pleura with blood is on  account injury No. 1.  Inj. Nos. 1 to 3 and 5 can be  caused by hard and sharp weapon.  Art. No. 31-knife  shown to witness.  Injury No. 1, 2 and 5 can be caused by  this knife.  Injury No.  5 can be caused while making  efforts to ward off the blow.  Pick-axe (Art. No. 5) shown  to witness.  Injury No. 3 can be caused by pointed end of  the pick-axe."

In his opinion, the injury No. 1 by itself was sufficient in the ordinary  course of nature to cause death.  Injury No. 2 and 3 can also cause death but  in that case the death will not be immediate.  Those injuries however would  not be sufficient in the ordinary course of nature to cause death as there  could be chances of survival as well as of death.  It was explained by him  that in his injury report he opined that injury no. 2 was muscle deep;  at that  time he did not probe the injury.  In his cross-examination, the doctor further  stated that:

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"The direction of injury No. 1 is medial upto the  thylum of lung (root of lung).  Direction of injury no. 2 is  downwards.  Direction of injury no. 3 is medial.  It is  correct to say that would cause by pick-axe (Article No.  5) will have lacerations on the edges of the wound.  I  have not noted these lacerations while describing injury  No.3.  It is correct to say that the weapon must enter upto  intestine for 6 inches for causing a puncture  The depth of  this injury no. 3 is about 6 inches.  Now says, I cannot  definitely say that inj. No. 3 can be caused by Article No.  5.  Considering the fact that the weapons pierced the  body of 6 inches.  It is a fact that I have described inj.  No. 2 in M.L.C. register as muscle deep.  This is so  because at that time I did not probe the injury."

The injury no. 1 therefore went right upto the right of the lung.  The  appellant herein did not restrain himself after inflicting one injury.  He  inflicted other and further injury also.  The injuries, in view of the post  mortem report, admittedly were more than one.   

It is, thus, not a case where only one injury was inflicted by the  accused on sudden provocation.   Section 299 I.P.C. reads as under:

"299. Culpable homicide. \026 Whoever causes death  by doing an act with the intention of causing death, or  with the intention of causing such bodily injury as is  likely to cause death, or with the knowledge that he is  likely by such act to cause death, commits the offence of  culpable homicide"

Section 300 I.P.C. reads as under:

"300. Murder. \026 Except in the cases hereinafter  excepted, culpable homicide is murder, if the act by  which the death is caused is done with the intention of  causing death, or- Secondly,-      If it is done with the intention of  causing such bodily injury as the offender knows to be  likely to cause the death of the person to whom the harm  is caused, or- Thirdly,-       If it is done with the intention of  causing bodily injury to any person and the bodily injury  intended to be inflicted is sufficient in the ordinary  course of nature to cause death, or- Fourthly,-      If the person committing the act  knows that it is so imminently dangerous that it must, in  all probability, cause death or such bodily injury as is  likely to cause death, and commits such act without any  excuse for incurring the risk of causing death or such  injury as aforesaid."

Exception 2 to the said Rule postulates that "when culpable homicide  is not murder if the offender, whilst deprived of the power of self-control by  grave and sudden provocation, causes the death of the persons who gave the  provocation or causes the death of any other person by mistake or accident." Exception  4 to the said Rule reads thus: "Exception 4. \026 Culpable homicide is not murder if  it is committed without premeditation in a sudden fight in  the heat of passion upon a sudden quarrel and without the  offender having taken undue advantage or acted in a  cruel or unusual manner."

       In this case Exception 2 has no application as the Appellant cannot be

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said to have committed offence whilst deprived with the power of  self- control by grave and sudden provocation, as has been noticed hereinbefore,  that in the facts and circumstances of the case the deceased and the  complainant cannot be said to have caused any provocation to the Appellant.

The distinction between the offences of culpable homicide and murder  is the presence of special mens rea which consists of four mental attitudes in  the presence of any of which the lesser offence becomes greater.  These  attitudes are stated in Section 300 IPC as distinguishing murder from  culpable homicide not amounting to murder.

The ingredients of the said Exception 4 are (i) there must be a sudden  fight; (ii) there was no pre-meditation; (iii) the act was committed in a heat  of passion and (iv) the assailant had not taken any undue advantage or acted  in a cruel manner.   

In the event the said ingredients are present, the cause of quarrel  would not be material as to who offered the provocation or started assault.   Indisputably, however, the occurrence must be sudden and not pre-meditated  and the offender must have acted in a fits of anger.   

In  Rajendra Singh & Ors. v. State of Bihar (2000) 4 SCC 298 at p.  307 this Court held:

"So far as the third contention of Mr. Mishra is  concerned, the question for consideration would be as to  whether the ingredients of Exception 4 to Section 300 of  the Indian Penal Code can be said to have been satisfied.   The necessary ingredients of Exception 4 to Section 300  are:

               (a)     a sudden fight;                 (b)     absence of premeditation;                 (c)     no undue advantage or cruelty.

but the occasion must be sudden and not as a cloak for  pre-existing malice.  It is only an unpremeditated assault  committed in the heat of passion upon a sudden quarrel  which would come within Exception 4 and it is necessary  that all the three ingredients must be found.  From the  evidence on record it is established that while the  prosecution party was on their land it is the accused who  protested and prevented them from continuing with  ploughing but when they did not stop the accused persons  rushed to the nearby plot which is their land and got  weapons in their hands and assaulted the prosecution  party ultimately injuring several members of the  prosecution party and causing the death of one of them  while they were fully unarmed.  In this view of the matter  on scrutinizing the evidence of the four eyewitnesses  PWs 2, 4, 7 and 8 who have depicted the entire scenario  it is not possible for us to agree with the submission of  Mr. Mishra, learned Senior Counsel appearing for the  appellants that the case is one where Exception 4 to  Section 300 would be applicable.  We, therefore, reject  the said submission of the learned counsel."

Even if it be assumed that responses to the questions put to the  deceased or the complainant caused provocation, the same evidently was  because of the pre-existing malice and the bias which the Appellant had  against them.  Moreover, the manner in which the deceased and the  complainant were assaulted show that the assailants took undue advantage of  the situation as they fell into the gutter and were, thus, in a helpless  condition.   

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In Prabhu and ors. vs. State of M.P.  [1991 Suppl. (2) SCC 725] a  three Judge Bench of this Court rejected a similar contention in a case where  the accused inflicted more than one injury stating :

"\005The evidence of PW 4, Dr. C.K. Dafal,  however, shows that the deceased  was belaboured  mercilessly.  There were innumerable contusions on the  entire body of the deceased from head to toe.  The wrist,  humerus, etc. were fractured and the whole body was full  of rod marks.  There were several contused lacerated  wounds on the entire face and the left eye was bleeding.   The totality of the injuries caused to the victim clearly  supports the finding of both the courts below that the  appellants went on belabouring the deceased till he died  on the spot.

In Thangaiya v. State of T.N. [(2005) 9 SCC 650], relying upon a  celebrated decision of this Court in Virsa Singh v. State of Punjab [1958  SCR 1495], the Division Bench observed:

"17. These observations of Vivian Bose, J. have become  locus classicus. The test laid down by Virsa Singh case  for the applicability of clause "thirdly" is now ingrained  in our legal system and has become part of the rule of  law. Under clause "thirdly" of Section 300 IPC, culpable  homicide is murder, if both the following conditions are  satisfied: i.e. (a) that the act which causes death is done  with the intention of causing death or is done with the  intention of causing a bodily injury; and (b) that the  injury intended to be inflicted is sufficient in the ordinary  course of nature to cause death. It must be proved that  there was an intention to inflict that particular bodily  injury which, in the ordinary course of nature, was  sufficient to cause death viz. that the injury found to be  present was the injury that was intended to be inflicted.

18. Thus, according to the rule laid down in Virsa  Singh case even if the intention of the accused was  limited to the infliction of a bodily injury sufficient to  cause death in the ordinary course of nature, and did not  extend to the intention of causing death, the offence  would be murder. Illustration (c) appended to Section  300 clearly brings out this point."

Therein it was held that there is no fixed rule that whenever a single  blow is inflicted Section 302 would not be attracted.   

No hard and fast rule, however, can be laid down as different  situations may arise having regard to the factual matrix involved therein.

Khanjan Pal v. State of U.P. [(1990) 4 SCC 53] relied upon by Mr.  Mohta is distinguishable.  In that case altercations between the deceased and  the accused was admitted.  A scuffle took place in course whereof the   deceased received injuries.  Evidence brought on records clearly established  that the whole incident took place as a result of sudden development.  The  appellant therein was found to have acted at the spur of the moment and  without any premeditation.   

In this case, there was no provocation from the side of the deceased.   He did not make even any causal remark which could provoke him nor the  parties entered in altercations which culminated in the incident.   

In Bhojappa Hanumanthappa (supra) whereupon again Mr. Mohta

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placed reliance the fact of the matter was entirely different as would appear  from the following :

"A commotion took place in front of the house of  Bhimappa (PW1) during the night of 10-9-1984.  The  appellant and his co-accused were involved in assaulting  Bhimappa and his brothers-in-law.  While the brawl was  in full swing PW 1’s daughter Renu Kavva, a twelve year  old little girl, rushed to the scene presumably to rescue  her father whom she would have thought to be in a  dangerous situation.  The appellant herein then swished a  wooden hammer he was then possessed with, which hit  on the head of Renu Kavva, which unfortunately turned  out to be fatal.  Therefore, the High Court, on the appeal  against acquittal, found that the appellant did not intend  to inflict the injury which caused her death.  We are in  agreement with the finding of the High Court that the  offence is only under Section 304 Part II IPC."

In the afore-mentioned situation, this Court opined that the appellant  therein had no ire against the little girl either before or during the  occurrence.  It was an act done in a rash mood with no intention to cause  even grievous hurt to her.

The case at hand stands absolutely on a different footing.  The  reported blows on the body of the deceased evidently were done with an   intention to cause bodily injuries to him and such injuries were sufficient in  the ordinary course of nature to cause death, the offence would come within  the purview of culpable homicide amounting to murder as envisaged under  Section 300 of the I.P.C.  

Having regard to the facts and circumstances of the present case and  for the reasons stated hereinbefore, we are of the opinion that it is not a fit  case where a different opinion from that of the trial court as also the High  Court can be arrived at.  Both the courts, in our considered view  had rightly  convicted the appellant herein for commission of an offence under Section  302 of the I.P.C.  The appeal being devoid of any merit is dismissed.